Imperial Tobacco Canada, the country's largest tobacco manufacturer and distributor, is launching a constitutional challenge against the federal government and its requirement to increase the size of graphic health warnings on cigarette packages to 75 per cent of the surface.

Photograph by: Christinne Muschi/Reuters
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Imperial Tobacco Canada, the country's largest tobacco manufacturer and distributor, is launching a constitutional challenge against the federal government and its requirement to increase the size of graphic health warnings on cigarette packages to 75 per cent of the surface.

The new warnings infringe upon tobacco manufacturers' right to freedom of commercial expression and consumers' right to "receive information concerning their purchasing decisions," according to the company's statement of claim filed on Wednesday in the Ontario Superior Court of Justice.

"In choosing to further regulate the legal and already heavily regulated industry, it is clear that the federal government is avoiding the country's No. 1 tobacco problem, the illegal tobacco market. A market that evades all taxes and current regulations and whose products carry NO health warnings," John Clayton, vice-president of Corporate Affairs at Imperial Tobacco Canada, said in a statement.

"Does anyone seriously believe that Canadians don't already know the risk of smoking?" Clayton asked. "Increasing the size of the warning from 50 to 75 per cent will not lead to any measurable change to public awareness. We have been forced to take this position for us and for other industries that may be the target of over-regulation."

However, Rob Cunningham, senior policy analyst with the Canadian Cancer Society, said the legal challenge is "entirely without merit."

"The larger warnings are more effective than smaller warnings," he said. "If these tobacco warnings don't work, they won't try to strike them down."

The federal government increased the size of package warnings last September.

According to the new regulations, graphic health warnings must occupy at least 75 per cent of all packages, and toxic emissions statements and a toll-free "quitline" number must be displayed.

Health information messages on the benefits of quitting also must be displayed on leaflets inserted in cigarette packages or printed on their exterior.

All tobacco packaging for cigarettes and small cigars in Canada must comply with the new regulations by June 19.

"It is lawful in Canada to manufacture, distribute and sell tobacco and tobacco-related products to adults. Presently, approximately five million Canadian adults chose to smoke," according to the company's statement of claim.

"Tobacco manufacturers, such as (Imperial Tobacco Canada) have a fundamental right, protected under . . . the charter, to communicate information to their customers about their lawful tobacco products," it said.

The company said its customers "similarly have a fundamental right, also protected under (the Charter of Rights and Freedoms) to receive information about those products."

"In exercising its constitutional right to communicate about its lawful tobacco products, (Imperial Tobacco Canada) uses its trademarks, brands, and packaging to communicate to its customers and differentiate its products into the marketplace."

According to the claim, the new labels infringe upon tobacco manufacturers' charter rights in at least two ways. First, they interfere with "how manufacturers choose to express themselves" because they are compelled to "carry the government's message in a manner and form directed by the government."

Second, the requirement to carry the message on 75 per cent of the package restricts manufacturers' ability to communicate their trademark or brand information to customers and to "protect the value of their trademarks and brands."

In an email, Health Minister Leona Aglukkaq said the Conservative government "is very proud of our efforts to help inform Canadians of the dangers of smoking, and will defend our position vigorously.

"I am confident that Canadians are on our side," Aglukkaq said. "As litigation is being planned by this tobacco company, I will not comment further at this time."

Even if the new health warnings have a "pressing and substantial objective," the impact on tobacco companies' charter rights is "disproportionate," leading to more "demonstrable harm than any speculative good," according to the claim.

Imperial Tobacco Canada is seeking costs of the legal action plus HST, and other relief that the court "deems just."

This action follows a legal challenge launched by another tobacco company, JTI-Macdonald Corp., which quietly filed its statement of claim in an Ontario court on April 3.

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Imperial Tobacco Canada, the country's largest tobacco manufacturer and distributor, is launching a constitutional challenge against the federal government and its requirement to increase the size of graphic health warnings on cigarette packages to 75 per cent of the surface.

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